For over a decade, the immigration service has become increasingly selective about which L1 visas it approves, particularly when it comes to the L1B specialized knowledge category, but also for the L1A visa category in certain areas. An important memoranda was signed by the director of USCIS in 2012 relating to the L1B issue, that your attorney will likely want to consult on this point, called Interpretation of the Term “Specialized Knowledge” in the Adjudication of L-1B Petitions. The content below will go over the L1 visa status process as well as tell you how to avoid some common problems along the way.
The First Challenge in the L1 Visa Status Process
The first pitfall to avoid in the L1 visa status process involves understanding that the immigration service gives little credence to unsubstantiated assertions on the part of the petitioner. Mere allegations that xyz is the case is given little to no weight by the adjudicator. This means that it is absolutely critical that the petitioner-applicant document every single claim she makes in her letter with regard to every minutia relating to the obligatory elements required for visa approval. The following can be critical components of avoiding additional requests for evidence or denials for a failure to make one’s case clearly in the initial offering:
- Do not make convoluted or technical arguments. Your profession surely has its internal logic and jargon. If you want to avoid an RFE or denial, don’t “go there” in your application. Be simple, straightforward, and plainly intelligible.
- Your attorney should review the last few months’ decisions from the immigration service centers in California and Vermont to ascertain exactly which hot button issues are provoking denials so as to avoid those problems when finalizing your application.
- Use a “highlights page” in the application. This is a one-page document which simply and clearly summarizes the application and the reasons for eligibility.
- Use organizational charts. Detailed, sophisticated and readily comprehendible org charts can help paint a strong picture of how the applicant fits into the broader business plan and how she or he is situated vis-à-vis other employees. Other visual aides with charts, graphs, diagrams, etc., even within the attorney letter, may be helpful.
The Second Challenge in the L1 Visa Process
Another category which has repeatedly seen increased scrutiny on the part of USCIS is the L1A functional manager position, also particularly with regard to new office L1 petitions where few employees exist. These beneficiaries are individuals who manage an essential function of the organization and meet the requirements of Section 214(l)(ii)(B) of the visa category, which states:
In terms of the L1 visa process, managerial capacity means an assignment within an organization in which the employee primarily:
- Manages the organization, or a department, subdivision, function, or component of the organization;
- Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
- Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
- Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.
If the functional manager application fails to illustrate the rationale of an important 2013 decision called Matter of Chawathe, where relevant, it will likely run an increased risk of denial. This decision by the Administrative Appeals Office makes clear that a petitioner applying for the functional manager L1A visa only need demonstrate by a preponderance of the evidence that most of the non-managerial tasks performed by this worker are handled by direct reports or others, including external service providers, in illustrating that the manager indeed plays this managerial role relative to the organization’s inherent business needs but not relative to the size of the business compared to the broader U.S. economy. This is an area where your business attorney or business consultant may want to weigh in with advice or supporting evidence.
If you need more information on the L1 visa process or L1 visa renewals, contact Katz Law Office, Ltd. today for a free consultation. Our team of experienced team of immigration and business lawyers will be able to help you with obtain your L1 visa or your L1 visa renewal as quickly and smoothly as possible.
None of the advice contained in these materials serves as a substitute for individualized legal representation by a licensed attorney with experience in the practice area.